In Manney v. MBV Engineering, Inc., 2019 WL 2079379 (Fla. 5th DCA May 10, 2019), the Fifth District Circuit Court of Appeals of Florida held the statute of repose did not apply to a homeowner’s claim against an engineer for negligently inspecting a newly constructed home because the inspection did not qualify as the design, planning or construction of an improvement to real property.
Prior to purchasing a newly constructed house in November 2002, Lillian D. Manney (“Manney”) hired MBV Engineering, Inc. (“MBV”) to review construction drawings and inspect the home for structural defects. MBV advised that the structural integrity of the house was excellent and there were no signs of structural distress. Thirteen years after Manney purchased the house, Manney discovered significant latent structural defects, including the defective design of the foundation.
On June 30, 2017, Manney sued MBV for negligently failing to identify the alleged defectively designed foundation. MBV moved for a judgment on the pleadings, arguing Manney’s claim was barred by a 10-year statute of repose under Florida Statutes § 95.11(3)(c). Section 95.11(3)(c) of the Florida Statutes provides “an action founded on the design, planning, or construction of an improvement to real property … must be commenced within 10 years after the date of actual possession by the owner …”
Manney argued that Section 95.11(3)(c) was inapplicable. Manney argued Florida Statutes § 95.11(4), which provides a two-year statute of limitations for an action for professional malpractice, applied. Under Section 95.11(4), but no statute of repose was applicable. Under Section 95.11(4), the limitations period begins to accrue “from the time the cause of action is discovered or should have been discovered with the exercise of due diligence.” Manney argued she filed her lawsuit against MBV well before the expiration of the two-year period. The trial court disagreed and granted the Motion for Judgment on the Pleadings.
On appeal, the Fifth District Circuit Court of Appeals of Florida reversed the trial court’s final judgment against Manney, holding the statute of repose does not apply to the claims. While Manney’s claims were related to the construction of new property, the Court stated MBV did not design, plan or construct an improvement to real property. The Court noted the inspection and plan review occurred after construction was complete, not prior to the construction occurring.
Design professionals should be aware that the statute of repose may not apply to claims arising out of inspections of constructed structures, regardless of whether those structures are newly constructed. Those defending such claims should be careful to apply the proper statute when evaluating the merits and exposure.